Justice Alito and the Abdication of Judicial Review of Abortion Laws

I want to address a question I’ve seen pop up a few times about the draft opinion in Dobbs that overrules Roe v. Wade and Planned Parenthood v. Casey.

One of the key questions in determining how courts should review challenges to laws (such as those restricting abortions) is what “standard of review” to apply. There are essentially three: strict scrutiny (applied for laws that appear to target certain traditionally disadvantaged minorities, e.g.), heightened scrutiny or undue burden standard (often applied in sex discrimination cases or previously in abortion cases, e.g.) and what’s called “rational basis” review, which applies to just about everything else. Laws rarely survive strict scrutiny by the Court; the approval by the Court of the internment of Japanese Americans in the Korematsu case is the oft-cited exception, and even that is now roundly considered to have been a terrible decision. On the other hand, laws almost always survive rational basis review. Only when a law has been passed with the sole intent of discrimination does it sometimes fall.

Prior abortion case law in Casey enunciated a mid-level “undue burden” standard that required the striking down any law that had "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." An undue burden would exist even where a statute purported to further the interest of potential life or another valid state interest if it places a “substantial obstacle” in the path of a woman's fundamental right to choice.

But the Dobbs opinion, at least in draft form, now ratchets the standard of review down to the most generic and nearly insurmountable standard of “rational review.” So long as a state legislature provides any kind of rational reason for its law, for example protecting the unborn, then it doesn’t matter what kind of burden it places on the woman. Courts basically would have to defer to the legislatures on this.

The rationale for this is rather tortured. Justice Alito writes the standard of review should be lowered because abortion is not something firmly rooted in the tradition of our country, arguing that at the time even of the 14th Amendment, which was meant to expand advance liberty and assure equal protection, most states had banned abortion.

But this reasoning is narrow and circular. Just because men were able to restrict women’s liberty and forbid abortion for centuries, thus making forced birth part of our painful legacy and legal abortion not, cannot mean the Court must now and forever defer to the will of the legislatures that continue to restrict that liberty. A broader view of our traditions would say that the government has always been restricted in how it can regulate the bodies of those it considers full and equal participants in society. If women had possessed full and equal rights to vote, work, earn a living, and express their opinions since the founding of our country, then abortion might well have been a long standing right. All the Court is doing now is compounding an existing inequity and lack of liberty.

The same reasoning, by the way, was used by the Court in Bowers v. Hardwick in 1983 to find that states could rationally restrict consensual same-sex intimacy. Because “homosexual sodomy” was not a “fundamental right” that was deeply rooted in the tradition of our country, according to the Court, then states could ban it as they liked. It intentionally missed the bigger picture, however, just as Alito does now: The government has always been restricted in what interest it should have in the private, intimate affairs of its citizens, regardless of what they do consensually. That is the nature of ordered liberty.

In any event, even as things are today abortion has been legal in America and a federal right for five decades, which is more than enough time for any laws against to be subject to a heightened standard of review. After all, any laws restricting abortion necessarily infringe upon the presumed liberties and equal status of women, and Americans have come to rely upon that right in planning their lives and families.

Reproductive rights advocates are correct to warn that the shift to “rational review” gives carte blanche to any state legislature to pass any kind of restriction, including a total ban, even in the case of rape or incest, and even when the health of the mother is at stake, with the federal courts now powerless to halt it. The validity of such laws will now be entirely a matter of state law, on a state-by-state basis. This is why many states have already announced that they will move to enact total bans on abortion as soon as the final Dobbs decision is made public. This is why we will very soon see two Americas, one where women still have agency over their bodies, and another where only wealthier women who can travel will be able to obtain abortions.